Original reportage and prose. About the Islands. From the piko. By Joan Conrow

Friday, October 4, 2013

Bill 2491 Morphs

PASS THE BILL demanded the bold letters on the red
tee-shirts. “Pass the bill!” exhorted the people wearing them. And last Friday, when a Kauai
County Council committee did pass Bill 2491 draft 1 — the pesticide/GMO measure — supporters celebrated jubilantly.

But now, as the dust settles and the initial euphoria
evaporates, the grousing and anger have returned. Activists are waking
up to the realization that although the bill was passed, it is far from intact.

Councilwomen JoAnn Yukimura and Nadine Nakamura
took control of the bill from its sponsors, Councilmen Tim Bynum and Gary
Hooser, and shifted just about everything during the amendment process, from
the preamble to the provisions. When the full Council takes up the matter again
at 8:30 a.m. Tuesday, Oct. 8, it will be looking at a bill that is very
different than the one that was introduced.

Gone from the findings are declarations that the biotech industry has
engaged in “rapid, long-term,
and unregulated growth,” that the situation on Kauai is “unlike those facing
any other county in the State of Hawai‘i” and that “residents have no choice”
but to live, work and commute near the fields.

Removed
as well was the assertion that Kauai, “more than any other county in the State
of Hawai‘i,” has become a site of increased commercial ag, along with all references
to field testing and experimental organisms.

The claim that genetically modified plants will “inevitably” disperse into the
environment has been revised to “potentially,” and references to “[b]iological
contamination” and “devastating economic impacts” were removed.

The
original bill’s reference to the “3.5 tons” [7,000 pounds] of restricted use
pesticides applied by five ag
entities — a figure that somehow got inflated in popular citations to 18 tons —has been changed to “approximately
5,477.2 pounds, and 5,884.5 gallons.”

The new bill also
adds this finding :

In 2012, restricted
use pesticides were used on Kaua’i by agricultural operations (7,727 pounds, or
13%), county government operations (28,350 pounds of Chlorine Liquefied Gas, or
49%), and nongovernment operations for structural pest control (25,828 pounds,
or 38%).

The new bill also
removes the claim that certain pesticides have been banned by other states, as
well as the assertion that “[p]esticide-laden dust
and drift from both restricted use pesticides and general use pesticides is
inevitable and results in long-term exposure to toxic chemicals harmful” to
people and the environment. Instead, it says that drift and dust “sometimes
travels” and are “potential sources of pollution endangering human
health and the natural environment.”

Original language
asserting that GMO cultivation and
biotech ag practices haven’t been “properly or
independently evaluated” was changed to “should be further evaluated,”
with no reference to GMOs.

The “right to know”
provision was changed slightly, from disclosing “what” GMOs are being grown to
“whether or not” GMOs are being cultivated.

The definition of
agriculture was changed from one that potentially excluded biotech:

“Agriculture”
means the cultivation of crops, including crops for bioenergy, flowers,
vegetables, foliage, fruits, forage, and timber; game and fish propagation; and
the raising of livestock, including poultry, bees, fish, or other animal or
aquatic life that are propagated for economic or personal use.

To one
that includes biotech:

“Agriculture” means the breeding, planting, nourishing, caring for,
gathering and processing of any animal or plant organism for the purpose of
nourishing people or any other plant or animal organism; or for the purpose of
providing the raw material for non-food products. For the purposes of this
Article, “agriculture” shall include the growing of flowers and other
ornamental crops and the commercial breeding and caring for animals as pets.”

The new bill also added a definition for the Office of Economic
Development — headed by George Costa, an outspoken opponent of the bill —
because that county agency will be charged with implementing the measure. The
original bill called for Public Works to administer it.

The new bill retains the original disclosure provision that requires “any commercial agricultural entities that annually
purchase or use in excess of five (5) pounds or fifteen (15) gallons of
restricted use pesticides” in a year to disclose the use of all pesticides. However, the requirement to reveal use of “experimental
pesticides” was removed.

The
original bill also called for public signs to be posted a minimum of 72 hours
prior to, during and after application of pesticides. The new bill calls for
24-hour advance posting, but leaves post application notice up to
the pesticide label. Further, all signs shall conform to EPA worker protection
standards. Workers will get daily notification.

The
new bill strengthens notification requirements to adjacent residents:

Pesticide
Pre-application notification must be provided to any requesting registered
beekeeper, property owner, lessee, or person otherwise occupying any property
within 1,500 feet from the property line of the commercial agricultural entity
where any pesticide is anticipated to be applied. A mass notification list
shall be established and maintained by each commercial agricultural entity, and
shall include access to a legible map showing all field numbers and any key,
legend, or other necessary map descriptions. Any interested registered beekeeper,
property owner, lessee, or person otherwise occupying any property within 1,500
feet from the property line of the operation of any commercial agricultural
entity, shall submit contact information to the relevant commercial
agricultural entity. These interested persons may submit up to three (3) local
telephone numbers, and two (2) email addresses. All mass notification messages
shall be sent via telephone, text message, or e-mail, with the method or
methods of transmittal to be determined by each commercial agricultural entity.
Each commercial agricultural entity shall provide an alternative method of
transmittal for any recipient who does not have access to the technology
necessary for the method or methods of transmittal selected by the commercial agricultural
entity. Requests to be included on, or removed from, the mass notification list
must be processed within three (3) business days. These “good neighbor courtesy
notices” shall contain the following information regarding all anticipated
pesticide applications: pesticide to be used, active ingredient of pesticide to
be used, date, time, and field number.

Each commercial
agricultural entity shall send regular mass notification messages at least once
during every seven (7) day week period summarizing the anticipated application
of any pesticide for the upcoming seven (7) day week.

Whenever a pesticide
application that was unforeseen and therefore not contained in the weekly “good
neighbor courtesy notice” is deemed by the commercial agricultural entity to be
necessary to alleviate a pest threat, an additional “good neighbor courtesy
notice” shall be generated to all recipients of the mass notification list
within twenty-four (24) hours after the application.

Each commercial
agricultural entity shall submit regular public disclosure reports once during
every seven (7) day week period compiling the actual application of all
pesticides during the prior week. These weekly public disclosure reports shall
contain the following information regarding all actual pesticide applications:
date; time; field number; total acreage; pesticide used; active ingredient of
pesticide used; gallons or pounds of pesticide used; and temperature, wind
direction, and wind speed at time of pesticide application.

Each commercial agricultural
entity shall submit all public disclosure reports to the County of Kaua’i
Office of Economic Development (OED), and shall include online access to a
legible map showing all field numbers and any key, legend, or other necessary
map descriptions for all applicable commercial agricultural entities. All
public disclosure reports shall be posted online, and available for viewing and
download by any interested persons. OED shall develop a standardized reporting
form.

The original bill’s
requirement for annual public reports on the possession of GMOs by tax map key
or ahupuaa, and the date of the introduction, remains in the new bill.

Regarding buffer
zones, the new bill prohibits use of any pesticides within 500 feet of a school,
medical facility, adult family boarding home, adult family group living home,
day care center, family care home, family child care home, nursing home, or
residential care home or dwelling — a broader definition than the original. It
also adds a prohibition against spraying within 100 feet of any park.

Whereas
the original called for a 500 foot buffer between pesticide applications and waterways and
shorelines, the new bill narrows it to 100 feet. It also narrows the original
500 feet from a roadway to 100 feet, while providing an exception for Kauai
Coffee’s trees, though roadside signs must be posted advising of the spraying.

Again, these buffers
address all pesticides, but apply
only to the five companies that use the most RUPs, not the county or state.

The new bill
completely removes the prohibition against open air testing of experimental
pesticides, as well as a moratorium on the experimental use and production of
GMOs pending an EIS. It also deletes the requirement for the county to conduct an
EIS and adopt a permitting process for “all
commercial agricultural entities that intentionally or knowingly possess” GMOs.

Instead, the new
bill calls for an:

Environmental and
Public Health Impact Study (EPHIS) through a two-part community-based process
to address key environmental and public health questions related to large-scale
commercial agricultural entities using pesticides and growing genetically
modified crops. The first part shall utilize a Joint Fact Finding Group (JFFG)
convened and facilitated by a professional consultant to determine the scope
and design of the EPHIS within twelve (12) months of the Notice to Proceed. In
the second part of the process, the EPHIS shall be
conducted by a professional consultant with oversight by the JFFG and shall be
completed within eighteen (18) months of the relevant Notice to Proceed.

The new bill retains
both the civil fine penalty of $10,000-$25,000
per day, and misdemeanor criminal penalties.
The new bill would take effect six months after passage, as opposed to
immediately in the original bill.

In addition to the revised bill, the Council next Tuesday will be
considering a resolution to create the study and fact-finding group.

Council Chair Jay Furfaro, who thus far has avoided any public comment on
the bill and directed the Council to pursue the amendments in a committee of
which he is not a member, has asked the administration for a presentation on
the “operational impacts” the bill would have on the
county.

Yukimura and Nakamura are
also asking the Council to consider releasing county attorney opinions on Bill
2491 and whether counties can legally restrict the use of atrazine.

The meeting starts at 8:30
a.m. and has a posted finish time of 1 p.m. — a cutoff that appears to limit public
testimony, which has consumed many hours each time the bill comes before the
Council.